Pedro Velez v. State of Texas--Appeal from 42nd District Court of Taylor County

Opinion filed September 13, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-07-00072-CR

__________

  PEDRO VELEZ, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 22769A

O P I N I O N

The jury convicted Pedro Velez of sexual assault, found the enhancement allegation to be true, and assessed punishment at confinement for sixty years and a $10,000 fine. We affirm.

There is no challenge to the sufficiency of the evidence. Appellant was indicted for aggravated sexual assault. The jury convicted him of the lesser included offense of sexual assault. The victim testified that she was born with cerebral palsy and that she had been in a wheelchair all of her life. She was not able to use her legs, and most of her life her hands had been Acurl[ed] all the way up.@ She was able to use one hand. She had a rod in her back that further limited her mobility.

The victim testified that appellant told her that he was getting a divorce, that he was lonely, and that he wanted someone. He repeatedly asked her to Asuck [his] dick.@ The victim told him no several times. Appellant unzipped his pants and put his erect penis in her mouth. The victim tried to push away from appellant but was unable to due to her disabilities. Appellant held his penis with one hand, put his other hand behind her neck, and moved his penis in and out of her mouth. She was too afraid of him to bite him. After appellant ejaculated in her mouth, he told her to swallow. Appellant cleaned her up and told her that, if she told anybody, he would call her a liar.

At the punishment phase of the trial, Margaret A. Velez testified that she was appellant=s ex-wife and that appellant had been convicted of assaulting a six-year-old girl in Alabama. As a result of that conviction, appellant had been ordered to attend and complete a sex offender program. Margaret also testified that appellant had forced her to have sexual intercourse without her consent. The order of the Alabama circuit court giving appellant credit for time served on his sentence for the assault on the six-year-old girl and transferring him to Texas to complete the terms and conditions of his supervised probation was admitted into evidence as State=s Exhibit No. 1. In the order, the circuit court stated that appellant must attend a sex offender treatment program and must reside in any of the other forty-nine states other than Alabama.

The charge to the jury at the punishment phase contained the following instruction:

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicated how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

The only objection to the charge was directed toward the verdict form concerning the allegation of the prior Alabama assault.

In his sole issue on appeal, appellant contends that the charge incorrectly stated the law concerning parole and that this error was so egregious that the case should be remanded for a new hearing as to punishment. We disagree.

The State concedes that the language in the charge concerning when appellant might become eligible for parole did not correctly track Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon 2006).[1] The State contends that the error was not so egregious as to result in reversible error under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). We agree.

To determine if unobjected-to error in the jury charge is so egregious as to result in reversible error, the appellate court must consider the jury instructions as a whole, the state of the evidence, the arguments of counsel, and any other relevant information revealed by the record as a whole. Olivas v. State, 202 S.W.3d 137, 146 (Tex. Crim. App. 2006); Almanza, 686 S.W.2d at 171. Nothing in the record before this court supports appellant=s claims of egregious harm.

The jury was correctly instructed under Article 37.07, section 4(a) that it could consider the existence of parole law but could not consider Athe manner in which the parole law may be applied to@ appellant. The jury is presumed to have followed this instruction in the charge. Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002). The evidence presented supported the jury=s assessment of punishment, and the record reflects that parole law was not a factor in the trial at any stage. The jury did not send out any notes during its deliberations, and the cases cited by appellant are distinguishable. The sole issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

September 13, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Article 37.07, section 4(a) provides: AUnder the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn.@